The Wizard of Id conjures up a mistrial

A PowerPoint presentation can be a great way for a litigator to explain a client’s case to a jury. The deft use of visuals helps lead jurors to the conclusions you wish them to reach.

Why, even interjecting a touch of humor can be a powerful way to make a point.

But who’d have thought that a defense lawyer could derail his medical malpractice case by showing a funny little comic strip to the jury?

Last week, West Virginia’s highest court decided that an attorney’s use of a “Wizard of Id” cartoon to slam medical malpractice suits was over the top.

So the estate of Julia Toler gets a second shot in its wrongful death suit against Dr. Edward R. Setser.

Toler was 61 years old in 1999 when Setser performed open heart surgery for the purpose of mitral valve replacement. During the course of the surgery, Toler suffered massive bleeding due to a tear in the aorta that occurred as Setser was separating the patient’s sternum. The complication left Toler in a semi-comatose state until her death in 2003.

Toler’s estate sued for medical malpractice, alleging that Setser should have ordered a preoperative CT scan of the chest. The CT scan purportedly would have disclosed that the space between Toler’s sternum and the aorta was inadequate to permit the procedure to be performed without complications.

The gist of Setser’s defense was that an aortic tear was a common, unavoidable risk of the surgery, one heightened by the presence of scar tissue from a previous open heart surgery performed on Toler.

At trial, all went according to Hoyle until defense counsel (who the court declines to clearly identify) rolled out his PowerPoint presentation during closing argument.

The first of three frames showed a fortune teller seated at a table with a client. With her hands placed on a crystal ball, the fortune teller says “I’ve made contact with your recently departed Uncle Ned.”

In the second frame, the client asks the fortune teller, “You have? What did he say?”

In the final frame, the fortune teller responds “He wants you to sue the doctor.”

Yep, a real gutbuster.

While showing the cartoon, defense counsel commented on how it reflected on today’s society.

Unable to leave well enough alone, defense counsel’s next slide, entitled “Dr. Setser Can’t Win,” had a list of bullets points explaining how his client was in a no-win situation and taking shots at plaintiff’s counsel — Marvin Masters — and the plaintiff’s expert witness — Dr. Steven Herman:

1 * No Matter What Course He Takes, There Are Going to Be Potential Life Threatening Complications That Can Not Be Avoided
2 * If One of Those Complications Occur, He is Going to be Criticized For Not Taking the Other Course
3 * Mr. Masters and his Expert, Dr. Herman, Will Take a Bad Result and Turn it Into Malpractice Every Time

Naturally, Masters objected and sought a mistrial, arguing in particular that the defense’s PowerPoint slides and closing argument violated a pretrial order that the issue of West Virginia’s medical malpractice “crisis” would not be placed before the jury.

While the trial judge generally sustained the objections, he declined to grant a mistrial and the Toler estate found itself on the losing side of the jury’s verdict.

But the West Virginia Supreme Court of Appeals just couldn’t stomach the comic strip and other elements of the PowerPoint presentation.

With regard to the “woe is me” bullet points, the court found that “defense counsel personalized the effects of his rhetoric through the use of demonstrative aids to argue that both Mr. Masters and Dr. Herman were intent on pursuing claims of medical malpractice regardless of whether such claims had merit. …

“The defense’s theory was essentially that if death results from medical treatment in a high risk scenario, a malpractice claim was inevitable if Mr. Masters and Dr. Herman were involved in the case,” the court explained. “This type of character derogation is clearly outside the bounds of permissible argument in summation.”

And then there was the matter of the “Wizard of Id” cartoon.

“While there may be disagreement as to whether the cartoon directly addresses a medical malpractice crisis, it cannot be argued that the cartoon had any relevance to the evidence before the court. And, given the clear jab at society’s penchant for suing doctors, it is difficult to view the cartoon as anything other than an attempt by defense counsel to gain sympathy for Dr. Setser while prejudicing the jury against the plaintiff. …

“[W]e cannot escape the conclusion that the decision to include the cartoon as part of summation appears to be a thinly-veiled attempt by defense counsel to inject, albeit through indirect means, references to matters that the trial court had proscribed. We strongly disapprove of this seemingly ‘back door’ method to insert a wrongful element of prejudice into the trial,” the court said. (Jones v. Setser)

One comment

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